Keough v. Leslie

• Decision Date: 19 January 1880
• Citation: 92 Pa. 424
• Parties: Keough <I>versus</I> Leslie.
• Court: Pennsylvania Supreme Court

92 Pa. 424

Keough versus Leslie.

Supreme Court of Pennsylvania.

January 9, 1880.

January 19, 1880.

January 9th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ. GREEN, J., absent

Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No. 62.

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James D. Lee and Pierce Archer, Jr. for plaintiffs in error.— Where, at the execution of a writing, a stipulation has been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which the writing has been executed, parol evidence is admissible, although it vary and change the terms of the contract: Greenwalt v. Kohne, 4 Norris 369; Shepler v. Scott, Id. 329.

The affidavit distinctly sets up, that the plaintiff's agent called on defendant to "establish an agency," not to effect a sale; that, before signing the contract, he was assured: "You don't have to pay only for what you sell;" and, again: "If the thing is not a success, we will take the patterns off your hands, and you will be at no loss."

Was not this a perfect defence? If Keough signed this fraudulent contract under the distinct assurance of an "agency" only, why should it now be turned into an absolute contract of sale and purchase?

W. W. Weigley and John H. Colton, for defendant in error.— Where the parol stipulation is not expressly averred to have been the inducement, on the faith of which the writing was executed, the general rule prevails, and parol evidence is inadmissible to vary the terms of the written instrument: Barnhart v. Riddle, 5 Casey 92; Chalfant v. Williams, 11 Id. 215.

The defence set up in the court below was bad also, because it consisted merely of alleged declarations of a special agent not within the scope of his authority. The agent had no authority to make the promises or declarations alleged, and of this, the plaintiffs in error had notice by the express terms of the contract they signed.

The stipulations alleged to have been made by the agent, being manifestly beyond the scope of his authority, and not assented to by defendant in error, cannot be set up as a defence to the action on the contract made: Hackney v. The Allegheny Co. M. Ins.

Co., 4 Barr 185; Insurance Co. v. Johnson, 11 Harris 72; Moore's Exr's v. Patterson, 4 Casey 505; Monocacy Bridge Co. v. Manufacturing Co., 2 Norris 517; Hanover Water Co. v. Ashland Iron Co., 3 Id. 286

Mr. Justice TRUNKEY delivered the opinion of the court, January 19th 1880.

The first paragraph of this written contract appointed the defendants agents for one year from its date, in consideration of their purchase of three hundred dollars' worth of paper patterns, fifteen per centum payable on delivery of the agreement, and the balance in four equal monthly payments, followed by detailed stipulations relative to the agency for sale of the plaintiff's patterns. Among them was one binding Leslie "to receive back from P. F. & M. C....